Looking Beyond Legal Goals: Using Alternative Dispute Resolution to Accomplish All the Client’s Objectives

Posted By Laura Gallagher, Oct 20, 2012

Whether disputes are resolved by adjudication or settlement has an impact on the parties involved and society as a whole. In Whose Dispute is it Anyway, Professor Carrie Menkel-Meadow argues that the current discourse about settlement prioritizes the public’s purported interest in the creation of precedent through litigation and stare decisis over the unique and compelling interests of the parties. While public resolution of a controversy, particularly through adjudication, may assist in guiding attorneys and judges in resolving future disputes, the private objectives and values of the parties may often be better served by settlement.

Settlement negotiations, like other types of negotiation, can benefit parties by avoiding the absolute win-loss result of the courtroom. Instead of “splitting the difference” and dividing a seemingly finite quantity of resources between two or more disputants, negotiations can allow parties to abandon their adopted “positions” and focus on their “interests” instead. Often, the underlying interests of each individual or corporation are so different that both sides can walk away from the table with much of what they wanted. “Splitting the difference” is unnecessary if each side wants a different resource. For instance, two children want a single cupcake. Although they both have the position of wanting the cupcake, further investigation reveals that one child only likes the frosting, while the other only likes the cake. A negotiator who gives the frosting to the first child and the cake to the second child satisfies both. Additionally, resolving the conflict through negotiation rather than adjudication can encourage creative thinking as both parties (and their attorneys) brainstorm together to find a solution. Rather than obtaining mutual concessions which leave both sides dissatisfied, the negotiation process can create new advantages and benefits which serve the interests of all the parties involved.

Applied to day-to-day negotiation experiences, Menkel-Meadow’s theory encourages attorneys to focus first on identifying the true needs and interests of their clients. Beyond simply monetary gain, what other motivations does the client possess? Is he or she driven by a desire for revenge, attention, a clean reputation, or justice? After assessing all the different interests the client has brought to the lawyer’s attention, the lawyer must decide whether adjudication, settlement negotiations (or some combination of both) best serves those interests. If the client yearns for his or her day in court, then litigating might be the best strategy. If the client wishes to verbally express his or her grievances to the opposing party to obtain peace of mind and the feeling of being heard, then a settlement negotiation might give him or her that opportunity. Settlement negotiations vary in location, formality, and by the parties who are present. Facing the opposing parties and directly discussing the issues can be very empowering, especially for those who perceive themselves as victims. It is very important for the lawyer to prioritize the needs and goals of the client over the attorney’s own agenda. After all, the dispute belongs to the client, not the attorney. Professor Menkel-Meadow makes this point strongly when she notes that long after the lawyer has received her fees and moved on to the next case, the litigant must live with the financial, emotional, and mental consequences of the dispute.

Although public participation in precedent-making may be reduced by resolving legal conflicts through settlement, conflicts might not be resolved at all without the privacy and flexibility of negotiations. In some situations, such as the Camp David negotiations, the conversation would not have even taken place without a guarantee of privacy for the participants. Clients, whether potential plaintiffs or defendants, often value their personal privacy and independence over the resolution of the conflict. Even a plaintiff with good cause might think twice about litigating when it entails opening up their life to public scrutiny and forcing their family and friends to give statements to the court. In some cases, such as those involving sexual harassment and sexual crimes, plaintiffs and victims might come forward less often if the underlying details of the abuse could become public. Settlement allows such clients to preserve their private lives and maintain more control over the legal process than they would in a courtroom.

For more information about increasing client participation in the dispute resolution process through settlement negotiations, see Carrie Menkel-Meadow, Whose Dispute is it Anyway?: A Philosophical and Democratic Defense of Settlement (in Some Cases), 83 GEO. L.J. 2663 (1995).